Newsletter Issue 56 - October 2013
In this issue:
Are contracts protected by copyright?
Quick patent examination
Ask Dr. Copyright
Today I heard that companies can claim that their contracts are copyrighted, and prevent others from publishing them or copying them. Please, Doc, tell me this can't be true! My company just cuts and pastes agreements we find on the Internet, so we don't have to hire lawyers to write new contracts.
Cheapskate T. Client
You rotten person! You think you can just steal some lawyer's work, paste it together, and call it your own! How DARE YOU!?!
Ok...the "Doc" has just taken a deep breath, counted to ten, and calmed WAY DOWN...
So, you heard right. Recently, Apple Inc. threatened a web site because it published the iTunes Radio contract that Apple offered to independent music labels. Apple claimed that publishing the contract on the site was an infringement of copyright, and demanded that the contract be taken down. Grudgingly, the website operator complied, and the issue seems to have gone away.
Under the copyright law (17 U.S.C. §101 et seq.) anything written by a lawyer (or other life form) is automatically protected from the moment it becomes "fixed" (written down). Contracts are no different from novels, poems, songs, paintings or any other "work" protected under the law. Unless you have a right to use a protected work, or you are able to successfully argue that your use is "fair" under §106 (and that is very difficult to do), then any use you make of a protected work will be deemed an infringement. Infringement can lead to damage awards far above what you might save - in some cases, up to $150,000.
Thus, in a victory for upstanding lawyers everywhere, it is not legal for you to copy, cut and paste your own contracts, even if you stand very little chance of getting caught doing it. But (and there is always a "but") there is a much better reason for you not to play lawyer. You see, contracts are written for different reasons, under the laws of different states and countries, and at different times. As the business objectives, locations, and laws change, so, too, should contractual terms and language. It may seem that you are saving money, but even a small mistake in a contract could cost you and your company many times what the attorney would have charged if there is ever a dispute over the agreement.
This advice is not just hypothetical, either. The "Doc" has been involved in do-it-yourself legal matters, and as a rule of thumb, he can tell you that the cost to fix things is more than ten times the cost to do it correctly in the first place (and no, he's not talking about that bathroom remodel he tried a few years back!)
Attorneys are always keeping up with changes in the law, and revising contract language to protect their clients.
Need a legal agreement? Ask the attorneys at LW&H -- they keep up with the law and draft documents that even your Mom wouldn't mind reading (if she was a really good Mom and quite bored one evening!)
Til next time,
Options for Quick Patent Examination ...
Would you like a quick answer from the U.S. Patent and Trademark
Office on whether your invention is patentable? Are you willing to
pay for it? If your answer to both of these questions is 'yes,' then
you can obtain an office action from the PTO examiner in less than
You have two options:
a. You can ask for 'Accelerated Examination.' Accelerated examination requires a petition fee ($70 for a 'small' entity and $35 for a 'micro' entity) on top of the usual filing fees. The applicant must file a 'pre-examination search and examination support document' and accept limits on the number of claims. The applicant also must agree to an examiner interview, which is a good thing, prior to the first office action. The 'pre-examination search and examination support document' generally demonstrates that a comprehensive patent search was conducted and demonstrates how the claims distinguish the prior art found in the search. The 'accelerated examination' option is attractive if you retained us to perform a patent search for you (or would like to) and your invention does not require a large number of claims.
b. Alternatively, you can pay for 'track one prioritized examination.' No search or examination support document is required and there are no limits on the number of claims. An examiner's interview is not required prior to the first office action. The fees are higher, however. The filing fee for 'track one' examination is $2,000.00 for a 'small entity' and $1,000.00 for a 'micro' entity, also on top of the usual filing fees. The 'track one' examination is advantageous if your invention is complex and requires a large number of claims or if we have not performed a patent search for you. You must request either of these alternatives at the time that you file your patent application.
If a quick decision on your patent application is consistent with your business goals, we can obtain that quick decision for you.
The Internet Goes International
Just this past week, the Internet Corporation for Assigned Names
and Numbers (ICANN) announced new generic top-level domain (gTLD)
names that are not written in Latin characters.
They are شبكة, which is Arabic for "web/network"; онлайн, Russian for "online"; сайт, Russian for "site"; and 游戏, Chinese for "game(s)."
What does this mean? Here's what ICAAN says:
...it signals the beginning of the largest-ever expansion of the Domain Name System (DNS); a change that promises to promote global innovation, competition and consumer choice. It means you will soon see the Internet grow from the 22 gTLDs that we have now (e.g., .COM, .BIZ, .ORG) to more than 1400 new possibilities.
According to ICANN, the new gTLD's will facilitate competition
and innovation and make the Internet more inclusive irrespective of
language or region. They provide "provide a huge opportunity to
increase engagement, commerce and connectivity and represent a bold
step forward in the globalization of the Internet."
The implementation of the new gTLD's is a two step process. The first phase consists of a "Sunrise" period during which time trademark holders can register second-level domains corresponding to their trademarks. A secondary domain is the designator below the first-level domain so if, for example, you have a domain called "example.com", the first-level is the ".com" and the second level is "example". The Sunrise period occurs before public release of the domains and provides a period when a trademark owner can pre-register their trademarks and protect themselves against cyber-squatting. Registry operators - the people that sell the domains - must provide a 30-day minimum Sunrise period. Following the Sunrise period is the period of "General Availability" when registrars make the new domains publicly available.
ICANN proposes to implement even more new gTLD's in the coming months so if this is an issue that is of interest, you can follow the developments at ICANN's web site.
PTO Fee Reductions Take Effect January 1, 2014
The PTO will reduce patent issue fees and the PCT (international
) filing fees effective January 1, 2014. If you are able to delay
payment of an issue fee or to delay filing a PCT application until
after January 1, then you can save money.
Many PTO fees depend on whether the application is owned by a 'large entity,' a 'small entity' or a 'micro entity.' In general, a 'large entity' has more than 500 employees. A 'small entity' has fewer than 500 employees.' A 'micro entity' is a small entity that has filed fewer than 5 patent applications (not counting provisional and international applications) and had a gross income of less than $150,000 in the previous calendar year (actually, the gross income must be less than three times the median income, but that currently comes out to $150,000). The income requirements generally limit micro entities to private individuals. A 'micro entity' also is someone who makes his or her living at an institution of higher learning. Does all this sound overcomplicated? Well, yes... but the purpose of all that complication is to give a break to the little guy.
The reduced fees are as follows:
Utility patent issue fee: For a small entity, the issue fee after January 1 will drop from $890 to $480. For a micro entity, the issue fee will drop from $445 to $240.
Design patent issue fee: For a small entity, the design patent issue fee will be $280, down from $510. For a micro entity, the design patent issue fee will be $140, down from $255.
Publication fee: The publication fee will drop from $300 to zero.
PCT (international) filing fees: The cost to file an international PCT application for small entities and micro entities will drop substantially, making international filings more attractive to small business. The major financial factor in international patent protection comes when the application fees for the individual foreign countries are due, generally 30 months after the first U.S. filing. International filings also require annual payments to the foreign countries each year, known as 'annuities.' The costs to file in the individual foreign countries and the annuities are not affected by the PTO fee reduction. International patent protection still will be out of reach for most small businesses and individual inventors.